013-NLR-NLR-V-54-ADDITIONAL-CONTROLLER-OF-ESTABLISHMENTS-Appellant-and-CORNELIS-FERNANDO-Respo.pdf
t)E StLVA J.—Additional Controller of Establishments v. Cometis Fernando 46
1952Present : H. A. de Silva J.
ADDITIONAL, CONTROLLER OP ESTABLISHMENTS,Appellant, and CORNELLS FERNANDO, Respondent
S. G. 776—Workmen's Compensation, C 30/7434145
Workmen's Compensation Ordinance (Cap. 117), s. 54—Regulation 30—Scope ofdiscretionary power of Commissioner—Decree nisi entered under Civil ProcedureCode, s. 84—Power of Commissioner to set it aside ex parte.
Although., by virtue of section 30 of the Regulations made under section 54of the Workmen’s Compensation Ordinance, some discretion i3 vested in theCommissioner in the application of the provisions of the Civil Procedure Code,the Commissioner is not entitled to set aside a decree nisi, which was enteredunder section 84 of the Civil Procedure Code, without due notice being givenby the plaintiff to the defendant of the application to set aside the decree nisi.He cannot make an order ex parte where the legal procedure requires thatthe order setting aside the decree nisi should be made inter partes.
A
IjLPPEAL from an order made by a Deputy Commissioner for Work-men’s Compensation.
D. Jansze, Crown Counsel, for the respondent appellant.
M. A. M. Hussein, for the applicant respondent.
Cur. adv. vult.
February 8, 1952. H. A. de Silva J.—
This is an appeal from an order made by a Deputy Commissioner forWorkmen’s Compensation, setting aside a decree nisi entered by himdismissing the application of the applicant-respondent.
The facts briefly are these :—The applicant-respondent made anapplication for compensation and the appellant,-the Additional Controllerof Establishments, was made respondent to the application. Mr. R. L.Nelson was appointed by the applicant by writing as his representative.The inquiry was taken up on November 28, 1950, on which date theapplicant was present with his approved representative, namely,Mr. Nelson. The respondent was represented by Crown Counsel. Onthat day the applicant applied for a date which was granted. OnFebruary 19, 1951, the inquiry was taken up. The applicant and hisrepresentative were present. The respondent was represented byCrown Counsel. The matter was partly heard and the inquiry wasadjourned to April 17, 1951. The matter again came up for inquiry onApril 21, 1951, on which date the applicant was present and CrownCounsel representing the respondent was also present. The applicantobtained an adjournment of the inquiry by paying taxed costs. The
46 DJ3 SILVA 3.—Additional Controller of Establishments v. Cornells Fernando
matter again, came up for inquiry on May 19, 1951, on which date boththe applicant and his approved representative were present and alsoCrown Counsel appearing for the respondent. The inquiry proceededand was adjourned for June 2, 1951. On June 2, 1951, the partieswere present and the inquiry proceeded. On that day the inquiry wasadjourned for June 20,1951. On June 6, 1951, Mr. Nelson, the representa-tive of the applicant, made an application for a postponement as hehad to attend the Colombo South Magistrate’s Court on June 20, 1951.With the consent of the Crown Counsel the inquiry was adjourned forJuly 4, 1951. It must be noted that this application for an adjournmentwas made by the applicant’s representative which was granted. OnJuly 4, 1951, when the matter was taken up for inquiry, both theapplicant and his representative were absent. Crown Counsel appearingfor the respondent was present. He did not admit the claim nor didhe consent to an adjournment. Thereupon, the Deputy Commissionerpassed decree nisi dismissing the application with costs. TTis orderruns thus, “ I pass the decree nisi dismissing the application with costs ”.On the same date, namely July 4, 1951, the Deputy Commissionerentered the decree nisi giving the applicant twenty-one days withinwhich to show cause against the decree nisi being made absolute. OnJuly 25, 1951, the following record has been made by the Deputy Com-missioner : “ Mr. Nelson present. Respondent absent. Two affidavitshave been submitted. It appears that the applicant has been in hospitalsince June 21, 1951, and that he did not receive notice of the inquiry.In the circumstances I set aside the decree nisi. This matter should berefixed for inquiry.” It is against this order that the respondent hasappealed. It will be noticed from the record above quoted that therespondent was absent when this order was made. In the petition ofappeal filed it is stated that the applicant-respondent’s representativehanded in at the office of the respondent-appellant on July 25, 1951, atabout 4 p.m. a letter marked A 5 to which was attached a documentmarked A6. A5 runs thus, “ Sir, I beg to attach a copy of my furtheraffidavit dated July 25, 1951, submitted to the Commissioner, to havethe decree nisi set aside, signed Comelis Fernando ”. The documentattached to A5 is A6 which is an affidavit affirmed to by ComelisFernando. In this affidavit he has referred to an affidavit of July 13,1951, in which he is alleged to have explained bis failure to attend theinquiry fixed for July 4, 1951. He farther says in this affidavit that hereceived no fresh notice intimating to him the next date of inquiry.He has also stated that he entered hospital and that his representative’sletter did not reach him.
It is contended by appellant’s Counsel that the order made by theDeputy Commissioner was wrong for various reasons. He contendsfirstly, that no notice of the application to set aside the decree nisi wasserved on the appellant before 4 p.m. on July 25, 1951. As a resultof the notice not having been given in time to the appellant, he wasnot in a position to be present before the Deputy Commissioner onJuly 25, 1951, to show cause against the decree nisi being setaside. Secondly, the decree nisi became automatically absolute onJuly 25, 1951.
DE SILVA J.—Additional Controller of Establishments v. Comelis Fernando 47
The procedure to be followed is provided by section 30 of theRegulations made in pursuance of section 54 of the Workmen’s Com-pensation Ordinance (Cap. 117). Provisions of various chapters of theCivil Procedure Code including Chapter 12 have been made applicable toproceedings before the Commissioner. Section 84 of the Civil ProcedureCode provides for the procedure to be followed in a case where theapplicant is absent on the date of inquiry. Section 30 of the Regulationshas made the following provisions :—
(а)Por the purpose of facilitating the application of the said provisions,
the Commissioner may construe them with such alterationsnot affecting the substance as may be necessary or properto adapt them to the matter before him ;
(б)the Commissioner may, for sufficient reason, proceed otherwise
than in accordance with the said provision if he is satisfiedthat the interests of the parties will not thereby be prejudiced.
Section 84 of the Civil Procedure Code which is made applicablerequires that when a decree nisi dismissing the plaintiff’s action is enteredhe had to show good cause, by affidavit or otherwise, for his non-appearance within fourteen days. The Deputy Commissioner has, whenentering the decree nisi, given the applicant twenty-one days withinwhich to show cause against the decree nisi being made absolute actingunder section 30 (a) and (6) of the Regulations, Chap. 117. It will thusbe seen that the Commissioner has construed the provisions of Chap. 12of the Civil Procedure Code with such alterations as he thought werenecessary or proper to adapt to the matter before him. No objectionhas been taken by learned Counsel for the appellant to the extension ofthe time given by the Deputy Commissioner from fourteen days totwenty-one days. It is an imperative provision of the law that therespondent should have been given notice of the application made to setaside the decree nisi previous to the expiration of fourteen days. Thusit was obligatory on the applicant to have given before the expiry of thetwenty-one days notice of his application to the respondent. Thenotice of this application was given only on July 25, 1951, at about4 p.m. That was the last day for showing cause and it cannot be saidthat notice was given previous to the expiration of the period.
The Deputy Commissioner has purported to set aside the decree nision July 25, 1951, in the absence of the respondent-appellant, whoundoubtedly does not seem to have had notice before the order was made.It is not clear whether the order setting aside the decree nisi was madebefore or after 4 p.m. on July 25, 1951. Whether it be before or after4 p.m. it would have been absolutely impossible for the respondent-appellant to have met the allegations made by .the applicant in hisaffidavit on July 25, 1951, when he, the appellant, received the noticeonly on that day at about 4 p.m.
The provisions of section 84 of the Civil Procedure Code are rigid.This section has received judicial interpretation in many decisions ofthis Court. Vide Annamali Chetty v. Carron x, Mohideen v. Marilckar a,1 (1921) 3 C. L. Bee. 48.* (1940) 41 N. L. B. 249.
48 DE SILVA J. —Additional Controller of Establishments v. Cornelia Fernando
Saram v. de Silva Austin de Mel v. Kodagoda 2. The principle enun-ciated in all these cases is that the application to set aside the decreenisi with notice to the defendant must he made within two weeks and theshowing cause has to be done within that period. The application of theabove principle to this particular case demands that the applicantshould have shewn cause with notice to the other side before the expirationof the twenty-one days originally given, which clearly the applicanthas failed to do. Vide Weerasooriya v. Controller of Establishmentss.Gunasekara J. has thus observed :—“ It has been contended that in thepresent case he didnot decide to proceed otherwise than in accordance withthose provisions and that therefore his order of November 10, 1947,became absolute upon the expiration of fourteen days. That may beso, and in consequence, the Commissioner’s order of December 23, 1947,may have been a wrong order against which the respondent could havesuccessfully appealed. It does not follow, however, that the order wasa nullity.” The Deputy Commissioner clearly made a wrong orderwhen he set aside Rule Nisi without notice to the respondent-appellantand without his being given an opportunity of being heard. He hasmade an ex parte order which he was not in law entitled to do. Section30 of the Regulations, Chap. 117, no doubt gives the Commissioner somediscretion in the application of the relevant provisions of the CivilProcedure Code, but can it be said that he has the right to make an orderex parte where the legal procedure requires that the order setting asidethe decree nisi should be made inter partes ? He had to consider theinterests of not only the applicant, but also of the respondent-appellant.It was not in the mouth of the applicant to say that his representativedid not inform him of the date of inquiry. The application for a datewas granted on the application of his own representative, who hadnotice of the adjourned date of inquiry. Notice to the applidant’sagent or representative is notice to him.
The appeal is allowed. The order setting aside the decree nisi is setaside and the decree nisi is made absolute. The applicant-respondentwill pay the respondent-appellant the costs of this appeal and of theinquiry before the Deputy Commissioner.
'Appeal allowed.
* (1940) 41 N. L. R. 419.3 (1945) 46 N. L. R. 150.
3 (1949) 51 N. L. R. 189.